Combs v. Plantation Patterns ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 95-6922
________________________
D.C. Docket No. CV94-T-103-E
DARRELL COMBS,
Plaintiff-Appellee,
versus
MEADOWCRAFT, INC.
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(February 20, 1997)
Before BIRCH, BLACK and CARNES, Circuit Judges.
CARNES, Circuit Judge:
Meadowcraft, Inc. appeals from a judgment entered against
it pursuant to a jury verdict in favor of Darrell Combs in this
Title VII race discrimination case. The jury found that
Meadowcraft denied Combs a supervisory position because of his
race. The dispositive issue in the appeal is whether Combs
produced evidence sufficient to allow a reasonable factfinder to
disbelieve Meadowcraft's proffered nondiscriminatory reasons for
failing to promote Combs. We conclude that he did not, and that
Meadowcraft was entitled to judgment as a matter of law for that
reason.
Part I of this opinion is a discussion of the facts. In Part
II, we summarize the procedural history of this case, followed by
a brief discussion of the standard of review in Part III. Our
discussion of the law and application of it to the facts is
contained in Part IV, which has four subparts.
Subparts A through C of Part IV contain an explication of the
legal framework applicable to discrimination cases in light of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817(1973), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.
Ct. 2742 (1993). It is in those parts of this opinion that we
answer the dicta contained in the recent panel opinion in Isenbergh
v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436 (11th Cir.
1996), which is critical of the holding in Howard v. BP Oil Co., 32
F.3d 520 (11th Cir. 1994), and by implication, of a number of our
other decisions in line with it. Howard and those decisions like
2
it hold that after a plaintiff has established a prima facie case,
evidence from which the factfinder could find that all of the
employer's proffered reasons for the challenged job action are
pretextual entitles the plaintiff to have the factfinder decide the
ultimate issue of discrimination. We answer the Isenbergh panel's
criticism of the Howard line of decisions and explain why the
holding of those cases is the law of this circuit, as well as at
least eight other circuits.
Subpart D of Part IV applies the law to the facts of this
case, and Part V contains our conclusion.
I. BACKGROUND FACTS
Meadowcraft owns and operates a manufacturing plant in Wadley,
Alabama. The plant produces outdoor patio furniture, which is sold
under the brand name "Plantation Patterns." The plant's workforce
is divided into a number of departments, including materials,
forming, welding, painting, packing, and shipping. The departments
have various shifts, and there are supervisors for each shift.
In January 1992, Meadowcraft hired Combs, who is black, to
work in the plant as a "crimp and form" operator. Shortly
thereafter, Combs was promoted to "material handler" and given a
pay raise. Combs was supervised by George Anderson and Edward
Lane. Both Anderson and Lane are black, and both worked as
supervisors in the plant's welding department.
Shortly after Combs started working at Meadowcraft, he
introduced himself to John Hart, the plant superintendent. Combs
told Hart that he had a degree in computer science from Alabama A
3
& M and that he was interested in doing office work that would
allow him to use his degree. In June 1992, Hart made arrangements
with the plant manager for Combs to do a temporary assignment
programming personal computers in the plant and preparing
spreadsheets. At some point, those arrangements included
reclassifying Combs to be a plant "lead man" -- meaning a quasi-
supervisor-- even though he was not actually doing lead man work or
supervising anyone. When Combs was nominally promoted to lead man,
his pay was increased.
Prior to his pay raise, Combs held a second job as manager at
a low-income apartment complex at which he was responsible for
maintenance, cleaning, and painting, as well as supervising
teenagers who did maintenance work at the complex. After Combs'
pay raise, he quit his second job.
On several occasions, when Meadowcraft officials from
Birmingham headquarters visited the plant, Combs was asked to
"hide" from the officials. At trial, Combs implied that he was
asked to hide because he is black, but he admitted on cross-
examination that he was never told that was the reason. Hart
testified that Combs was asked to hide because headquarters had not
approved his computer job, and that he had explained that to Combs.
While Combs was assigned to the temporary computer project,
Hart asked him whether he would be interested in being a supervisor
at the plant. Combs said that he was interested. Although Combs
indicated an interest in supervisory positions in both the painting
and welding departments, he was awarded neither position. Both
4
positions were awarded to white persons. At trial, Combs conceded
that the person who was made painting supervisor was better
qualified than he, and Combs abandoned his discrimination claim
with respect to that position. Meadowcraft's failure to promote
Combs to the welding supervisor position was the only failure-to-
promote claim that was submitted to the jury, and it is the only
claim in controversy in this appeal.
Meadowcraft awarded the welding supervisor position to Fred
Walker in July 1992. Walker served in that capacity for ten or
eleven days, but then was reassigned to work temporarily as a
supervisor in the packing department. That temporary reassignment
lasted for about a year, after which Walker returned to his
position as a supervisor in the welding department.
Around November 1992, after Combs had completed his temporary
computer assignment, he was asked to assist with a "bar code"
scanning project in the plant's packing department -- where Walker
was then a temporary supervisor. By December 1992, the scanning
project had been put on hold, and Hart told Combs that he had run
out of temporary assignments for him. Hart suggested that Combs
return to his position as a material handler in the plant. Combs
declined to return to his material handler job, and his employment
at Meadowcraft came to an end on December 18, 1992.1
1
Meadowcraft contends that Combs resigned voluntarily. In his
complaint and at trial, Combs contended that he was not offered the
option of returning to his job as material handler, and that he was
laid off or forced to quit. However, the jury specifically
rejected Combs' discriminatory termination claim, and the only
claim at issue on appeal is Combs' failure-to-promote claim.
5
II. PROCEDURAL HISTORY
In February 1993, Combs filed a charge with the Equal
Employment Opportunity Commission ("EEOC"), alleging unlawful
racial discrimination. After receiving his right-to-sue letter
from the EEOC, Combs filed suit in the Middle District of Alabama,
alleging claims based on Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and on 42 U.S.C. § 1981. Combs sought
recovery under the following race discrimination theories: (1)
that Meadowcraft terminated him from his employment because of his
race; (2) that Meadowcraft subjected him to impermissible racial
harassment; and (3) that Meadowcraft denied him a supervisory
position because of his race. Combs also appended a state law
claim for the tort of outrage, but the district court dismissed
that claim with prejudice, and Combs has not appealed that
dismissal.
Combs' three race discrimination claims were tried to a jury
on August 21-25, 1995. At trial, Meadowcraft proffered evidence in
support of three legitimate, nondiscriminatory reasons for its
decision to promote Walker instead of Combs. Those reasons were:
(1) Walker's superior welding experience; (2) the recommendations
of supervisors Lane and Anderson; and (3) Walker's superior
supervisory experience. At trial, Meadowcraft moved for judgment
as a matter of law both at the close of the plaintiff's case and at
the close of all the evidence. The district court denied those
motions, and the case was submitted to the jury.
6
The jury unanimously rejected Combs' discriminatory
termination claim, but could not reach a unanimous verdict on the
remaining two claims. Thereafter, the parties agreed that the
remaining two claims could be decided by majority verdict. The
jury by a majority vote determined that Combs had not proven his
claim for discriminatory harassment, but that he had proven his
claim that he was denied a supervisory position because of his
race. The jury awarded Combs compensatory damages of $76,552 and
punitive damages of $42,700.
After the jury returned its verdict, Meadowcraft renewed its
motion for judgment as a matter of law and made an alternative
motion for a new trial. In support of those motions, Meadowcraft
argued (among other things) that Combs had failed to put forward
sufficient evidence to permit the jury to disbelieve the
nondiscriminatory reasons that Meadowcraft had proffered in
explanation of its decision to promote Walker to welding supervisor
instead of Combs. The district court denied both the principal and
alternative motions, and this appeal followed.2
2
On appeal, Meadowcraft contends that it is entitled to a new
trial, even if it is not entitled to judgment as a matter of law.
Meadowcraft asserts three grounds in support of that contention:
(1) insufficiency of the evidence; (2) prejudicial admission of
inadmissible evidence; and (3) excessive damages. Because we
conclude that Meadowcraft is entitled to judgment as a matter of
law, we do not discuss further Meadowcraft's arguments in favor of
a new trial.
7
III. STANDARD OF REVIEW
We review de novo a district court's denial of a defendant's
renewed motion for judgment as a matter of law, applying the same
standards as the district court. Sherrin v. Northwestern Nat'l
Life Ins. Co., 2 F.3d 373, 377 (11th Cir. 1993). Those standards
require us to consider "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct.
2505, 2512 (1986). In conducting our review:
[W]e consider all the evidence, and the inferences drawn
therefrom, in the light most favorable to the nonmoving
party. If the facts and inferences point overwhelmingly
in favor of one party, such that reasonable people could
not arrive at a contrary verdict, then the motion was
properly granted. Conversely, if there is substantial
evidence opposed to the motion such that reasonable
people, in the exercise of impartial judgment, might
reach differing conclusions, then such a motion was due
to be denied and the case was properly submitted to the
jury.
Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989)
(footnotes omitted).
Under the foregoing standard, the nonmoving party must provide
more than a mere scintilla of evidence to survive a motion for
judgment as a matter of law: "[T]here must be a substantial
conflict in evidence to support a jury question." Id. To
summarize, we must consider all the evidence in the light most
favorable to Combs and determine "whether or not reasonable jurors
could have concluded as this jury did based on the evidence
8
presented." Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir.
1993) (citation and internal quotation marks omitted).
IV. WHETHER MEADOWCRAFT WAS ENTITLED TO JUDGMENT
AS A MATTER OF LAW
A. The Issue -- Once a Prima Facie Case Has Been
Established, Does Evidence Sufficient to
Disprove All of the Employer's Proffered
Reasons Preclude Judgment as a Matter
of Law for the Employer?
Meadowcraft and Combs disagree both as to the applicable law
and the weight of the evidence. Meadowcraft contends that it is
entitled to judgment as a matter of law because (1) Combs failed to
produce evidence sufficient to allow a reasonable factfinder to
disbelieve its proffered nondiscriminatory reasons for promoting
Walker instead of Combs, and (2) even if Combs had produced such
evidence, he still failed to present evidence that discrimination
was the true reason for the decision. According to Meadowcraft, it
is entitled to judgment as a matter of law even if a reasonable
factfinder could have rejected each of its proffered
nondiscriminatory reasons for promoting Walker instead of Combs,
because Combs had the additional burden of demonstrating that
Meadowcraft's decision was motivated by racial animus. For that
proposition, Meadowcraft relies primarily on Walker v. NationsBank
of Florida, 53 F.3d 1548 (11th Cir. 1995), and dicta contained in
this circuit's recent decision in Isenbergh v. Knight-Ridder
Newspaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996).
Combs takes issue with Meadowcraft's view of the law and the
evidence. First, Combs contends that he put forward sufficient
9
evidence to permit a reasonable factfinder to disbelieve
Meadowcraft's proffered nondiscriminatory reasons for its decision,
and he argues that no further evidence of discrimination is
required for the jury's verdict to be sustained. Combs relies
primarily on this Court's decision in Howard v. BP Oil Co., 32 F.3d
520 (11th Cir. 1994), as well as the Supreme Court's landmark
decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.
Ct. 2742 (1993). Alternatively, Combs contends that he put forward
sufficient additional evidence of discriminatory intent to support
the jury's verdict -- even if rejection of Meadowcraft's proffered
nondiscriminatory reasons were not enough, when coupled with his
prima facie case, to support a finding of discrimination.3
We turn first to the parties' legal arguments. In light of
the parties' differing views of the law governing Title VII
discrimination claims that rely on circumstantial evidence, and the
arguments that the parties make in support of those views, we think
it appropriate to examine the applicable law in some detail. Such
a review is especially appropriate in light of the Isenbergh
panel's recent observation in dicta that, "some confusion exists in
the law of this circuit about whether Hicks always precludes
judgments as a matter of law for employers whenever there is a
3
According to Combs' alternative theory, the jury's verdict is
supported by evidence that Meadowcraft had no established criteria
for promotion to supervisor and only two out of twelve plant
supervisors were black. We reject that theory without detailed
discussion, because the evidence offered to support it was
undeveloped and without analytic foundation. See, e.g., Brown v.
American Honda Motor Co., 939 F.2d 946, 952-53 (11th Cir.) (noting
that statistics without analytic foundation are "virtually
meaningless"), cert. denied, 502 U.S. 1058, 112 S. Ct. 935 (1992).
10
plausible basis on which to disbelieve the employer's proffered
reason for the employment decision in question," 97 F.3d at 442.
We believe that any confusion about this question in our
circuit's law -- defined by holdings, not dicta -- is limited, and
we hope that our discussion will limit that confusion even more.
As we will discuss, there is a substantial line of cases in this
circuit that adequately and accurately sets forth the legal
principles governing the nature and quantum of evidence necessary
to permit a jury to infer discrimination. Before turning to those
cases, however, we will review briefly the basic legal framework
governing discrimination cases that are based on circumstantial
evidence.
B. The Basic Framework Governing Discrimination Cases
Based on Circumstantial Evidence
Despite a Title VII plaintiff's failure to present direct
evidence of discrimination, he may nevertheless present sufficient
circumstantial evidence of discrimination to create a jury
question. In evaluating Title VII claims supported by
circumstantial evidence, we use the now-familiar framework
established by the United States Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.
Ct. 1089 (1981). Under that framework, the plaintiff has the
initial burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at
11
1824; Burdine, 450 U.S. at 253-54 & n.6, 101 S. Ct. at 1093-94 &
n.6.
Establishment of the prima facie case in effect creates
a presumption that the employer unlawfully discriminated
against the employee. If the trier of fact believes the
plaintiff's evidence, and if the employer is silent in
the face of the presumption, the court must enter
judgment for the plaintiff because no issue of fact
remains in the case.
Burdine, 450 U.S. at 254, 101 S. Ct. at 1094 (footnote omitted).
The effect of the presumption of discrimination created by
establishment of the prima facie case is to shift to the employer
the burden of producing legitimate, nondiscriminatory reasons for
the challenged employment action. McDonnell Douglas, 411 U.S. at
802, 93 S. Ct. at 1824; Burdine, 450 U.S. at 254, 101 S. Ct. at
1094. To satisfy that burden of production, "[t]he defendant need
not persuade the court that it was actually motivated by the
proffered reasons. It is sufficient if the defendant's evidence
raises a genuine issue of fact as to whether it discriminated
against the plaintiff." Burdine, 450 U.S. at 254-55, 101 S. Ct at
1094 (citation and footnote omitted). "[T]o satisfy this
intermediate burden, the employer need only produce admissible
evidence which would allow the trier of fact rationally to conclude
that the employment decision had not been motivated by
discriminatory animus." Id. at 257, 101 S. Ct. at 1096 (emphasis
added).
If a defendant carries its burden of producing legitimate,
nondiscriminatory reasons for its decision, the presumption of
discrimination created by the McDonnell Douglas framework "drops
12
from the case," and "the factual inquiry proceeds to a new level of
specificity." Burdine, 450 U.S. at 255 & n.10, 101 S. Ct. at 1094-
95 & n.10. However, elimination of the presumption does "not imply
that the trier of fact no longer may consider evidence previously
introduced to establish a prima facie case." Id. at 255 n.10, 101
S. Ct. at 1095 n.10. As the Supreme Court has explained:
A satisfactory explanation by the defendant destroys the
legally mandatory inference of discrimination arising
from the plaintiff's initial evidence. Nonetheless, this
evidence and inferences properly drawn therefrom may be
considered by the trier of fact on the issue of whether
the defendant's explanation is pretextual. Indeed, there
may be some cases where the plaintiff's initial evidence,
combined with effective cross-examination of the
defendant, will suffice to discredit the defendant's
explanation.
Id.Once a defendant satisfies its intermediate burden of
production, and the initial presumption of discrimination
accompanying the prima facie case has been eliminated, the
plaintiff has the opportunity to discredit the defendant's
proffered explanations for its decision. According to the Supreme
Court:
[The plaintiff] now must have the opportunity to
demonstrate that the proffered reason was not the true
reason for the employment decision. ... [The plaintiff]
may succeed in this either directly by persuading the
court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.
Id. at 256, 101 S. Ct. at 1095 (emphasis added) (citation omitted).
In other words, the plaintiff has the opportunity to come forward
with evidence, including the previously produced evidence
establishing the prima facie case, sufficient to permit a
13
reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment
decision. Id.; McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at
1825.
C. The Effect of Evidence Sufficient to Permit
Rejection of the Employer's Proffered
Nondiscriminatory Reasons
1. The Supreme Court's Hicks Opinion
The framework for evaluating discrimination cases based on
circumstantial evidence, which we have just discussed, had been
established for some time when the Supreme Court decided St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).
Before the Hicks decision, however, the circuits had split over the
effect of a decision by the factfinder that the proffered
nondiscriminatory reasons given by the employer were not the real
reasons for its employment decision. Some of the circuits had held
that a finding of pretext mandated a finding of illegal
discrimination, while others had held that a finding of pretext did
not. See Hicks, 509 U.S. at 512-13, 113 S. Ct. at 2750 (listing
cases). The divergent views of the circuits on the effect of a
finding of pretext prompted the Supreme Court to grant certiorari
in Hicks to resolve the question. Id. at 512, 113 S. Ct. at 2750.
In Hicks, the plaintiff had brought a Title VII lawsuit,
alleging he had been demoted and discharged because of his race.
Id. at 505, 113 S. Ct. at 2746. After a full bench trial, the
district court found for the defendant, despite its finding that
the reasons the defendant gave for its actions were not the real
14
reasons for the plaintiff's demotion and discharge. Id. at 508,
113 S. Ct. at 2748. The Eighth Circuit reversed, holding that once
the plaintiff had discredited all of the employer's proffered
nondiscriminatory reasons for its decision, the plaintiff was
entitled to judgment as a matter of law. Id. The Supreme Court
reversed the Eighth Circuit and held that judgment for the
plaintiff was not compelled by rejection of all of the employer's
proffered nondiscriminatory reasons. Id. at 511, 113 S. Ct. at
2749.
Although the Supreme Court in Hicks rejected the position that
disbelief of the employer's proffered reasons requires judgment for
the plaintiff, the Court was careful to explain that such
disbelief, in tandem with the plaintiff's prima facie case, is
sufficient to permit the factfinder to infer discrimination. The
Court said:
The factfinder's disbelief of the reasons put forward by
the defendant (particularly if disbelief is accompanied
by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show
intentional discrimination. Thus, rejection of the
defendant's proffered reasons will permit the trier of
fact to infer the ultimate fact of intentional
discrimination, and the Court of Appeals was correct when
it noted that, upon such rejection, "[n]o additional
proof of discrimination is required."
Id. at 511, 113 S. Ct. at 2749 (quoting Hicks v. St. Mary's Honor
Ctr., 970 F.2d 487, 493 (8th Cir. 1992)) (footnote omitted) (second
emphasis added). That is a pretty clear statement.
Four justices dissented in Hicks, but none of them did so
because they thought that rejection of an employer's proffered
nondiscriminatory reasons, together with the prima facie case, is
15
insufficient to permit the factfinder to infer the ultimate fact of
intentional discrimination. To the contrary, the dissenting
justices would have gone even further than the majority did. They
would have affirmed the Eighth Circuit's holding that once the
factfinder rejects the employer's explanations for its decision, a
finding of discrimination is required, and the plaintiff is
"entitled to judgment." See Hicks, 509 U.S. at 532-33, 113 S. Ct.
at 2760-61 (dissenting opinion of Souter, J., joined by White,
Blackmun, and Stevens, J.J.).
Based on the Supreme Court's clear statement in the majority
opinion in Hicks, read together with the rationale of the
dissenting justices, we understand the Hicks Court to have been
unanimous that disbelief of the defendant's proffered reasons,
together with the prima facie case, is sufficient circumstantial
evidence to support a finding of discrimination. Therefore, it
follows from Hicks that a plaintiff is entitled to survive summary
judgment, and judgment as a matter of law, if there is sufficient
evidence to demonstrate the existence of a genuine issue of fact as
to the truth of each of the employer's proffered reasons for its
challenged action. With one exception, which we will discuss
later, up until the Isenbergh opinion, not only the holdings but
also the statements of this Court have been entirely consistent
with that understanding of the Hicks decision.
2. The Post-Hicks Case Law in this Circuit Before Isenbergh
Just a few months after the Supreme Court decided Hicks, we
were called upon to apply it in Hairston v. Gainesville Sun
16
Publishing Co., 9 F.3d 913 (11th Cir. 1993). In Hairston, a
terminated employee sued his former employer, alleging age
discrimination and retaliatory termination.4 The district court
granted summary judgment for the employer. We reversed. In doing
so, we explained that, under Hicks, if the employer carries its
burden of production (by articulating legitimate reasons for the
action), the plaintiff must demonstrate "that the proffered reason
was not the true reason for the employment decision." Id. at 919
(quoting Hicks, 509 U.S. at 508, 113 S. Ct. at 2747) (internal
quotation marks omitted). Following the Hicks rule, we did not
hold that additional proof of discrimination would be required at
trial. Instead, we explained:
The plaintiff may succeed by directly persuading the
court at trial that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence.
In order to establish pretext, the plaintiff is not
required to introduce evidence beyond that already
offered to establish the prima facie case.
....
[P]laintiff's burden at summary judgment is met by
introducing evidence that could form the basis for a
finding of facts, which when taken in the light most
favorable to the non-moving party, could allow a jury to
4
Although Hairston was an age discrimination case brought
under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§ 621 et seq., and not under Title VII, "[t]he Eleventh Circuit has
adapted to issues of age discrimination the principles of law
applicable to cases arising under the very similar provisions of
Title VII." Hairston, 9 F.3d at 919 (citing Carter v. City of
Miami, 870 F.2d 578, 581 (11th Cir. 1989)). Indeed, the Isenbergh
panel opinion, which we discuss infra in some detail, acknowledges
that the Title VII burden-shifting framework of McDonnell Douglas
and Burdine also applies to age discrimination cases. See
Isenbergh, 97 F.3d at 440.
17
find by a preponderance of the evidence that the
plaintiff has established pretext ....
Id. at 920-21 (citations omitted) (emphasis added). Because the
plaintiff in Hairston had submitted sufficient evidence to permit
the factfinder to find that the employer's proffered reasons were
pretextual, we held it was error for the district court to grant
summary judgment. Id. at 921.
Thus Hairston, our first decision on this issue following
Hicks, clearly held that one way a plaintiff may succeed in
establishing discrimination is by showing that the employer's
proffered explanations are not credible. When that happens, the
plaintiff may or may not ultimately prevail in the litigation,
because the factfinder may or may not choose to make the
permissible inference of discrimination. However, as we explained
in Hairston, once the plaintiff introduces evidence sufficient to
permit the factfinder to disbelieve the employer's proffered
explanations, summary judgment is not appropriate, because
"[i]ssues of fact and sufficiency of evidence are properly reserved
for the jury." Id. at 921. We said nothing in Hairston about the
plaintiff being required to establish anything more than a prima
facie case plus the falsity of the tendered explanations; we said
nothing about anything else being required for the plaintiff to
avoid summary judgment, because nothing else is required.
In Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994), we were
again called upon to apply the Hicks rule, this time in the context
of sex discrimination. In Batey, we recognized that under Hicks,
evidence demonstrating the incredibility of the employer's
18
proffered explanations is not, standing alone, enough to "compel
judgment for the plaintiff." Id. at 1334 n.12 (emphasis added)
(citation and internal quotation marks omitted). Nevertheless, we
held that such evidence is sufficient to satisfy the plaintiff's
burden in responding to a summary judgment motion, because Hicks
permits the trier of fact to base a finding of discrimination on
rejection of the employer's proffered nondiscriminatory reasons,
taken together with the plaintiff's prima facie case. Id. at 1334.
Because the plaintiff in Batey had produced sufficient evidence for
the factfinder to disbelieve the reasons that the employer
proffered for the employment decision, we reversed the district
court's grant of summary judgment for the employer. Id. at 1335-
36. Consistent with our Hairston precedent, and with Hicks, we
held that evidence of pretext, when added to a prima facie case, is
sufficient to create a genuine issue of material fact that
precludes summary judgment. Id.Batey was followed closely by our decision in Howard v. BP Oil
Co., 32 F.3d 520 (11th Cir. 1994). In Howard, we reversed the
district court's grant of summary judgment for the defendant where
there was sufficient evidence to permit the factfinder to reject
the defendant's proffered reasons for awarding gas station
dealerships to white and Asian dealers instead of to the plaintiff,
who was black. We explained the effect of that evidence as
follows:
[Hicks] holds that proof that a defendant's
articulated reasons are false is not proof of intentional
discrimination; it is merely evidence of intentional
discrimination. However, evidence of intentional
19
discrimination is all a plaintiff needs to defeat a
motion for summary judgment. That evidence must be
sufficient to create a genuine factual issue with respect
to the truthfulness of the defendant's proffered
explanation.
Id. at 525 (emphasis in original). In Howard, as in Hairston and
Batey, we held that summary judgment was inappropriate because,
taken together with the plaintiff's prima facie case, "the fact
finder's rejection of [the] defendant's proffered reasons is
sufficient circumstantial evidence upon which to base a judgment
for the plaintiff." Id. at 527.
We again addressed application of the Hicks rule in Cooper-
Houston v. Southern Railway Co., 37 F.3d 603 (11th Cir. 1994). In
that case, we reversed the district court's grant of summary
judgment in favor of an employer where the evidence was sufficient
to permit the factfinder to reject the employer's proffered
explanation for its employment decision. We explained that in
order to avoid summary judgment, "[the plaintiff] was ... obligated
to present evidence that [the employer's] legitimate reasons were
not what actually motivated its conduct," and we held that the
plaintiff had met that obligation. Id. at 605 (citations omitted).
The plaintiff's pretext evidence in Cooper-Houston included
evidence that the employer had made racially derogatory remarks in
the workplace, so it was unnecessary to discuss whether summary
judgment would have been inappropriate even if the plaintiff's
pretext evidence itself had not been racially charged.
Significantly, however, we did not say that evidence of racially
prejudiced attitudes was required for proof of pretext, even though
20
such evidence was present in that case. Therefore, Cooper-Houston
represents our fourth post-Hicks decision on this issue, all
consistently establishing the law of this circuit that a prima
facie case plus evidence permitting disbelief of the employer's
proffered reasons equals the plaintiff's entitlement to have the
factfinder decide the ultimate issue of discrimination. So far, so
good. But then came the incongruent Walker decision.
In Walker v. NationsBank of Florida, 53 F.3d 1548 (11th Cir.
1995), a panel of this Court affirmed the grant of judgment as a
matter of law in favor of the employer in an age and sex
discrimination case, even though the plaintiff had established a
prima facie case and had put on evidence sufficient to permit the
factfinder to disbelieve all of the employer's proffered reasons
for the adverse employment action. Id. at 1556-58. Despite that
evidence, the Walker panel said that "Walker did not produce
evidence that raised a suspicion of mendacity sufficient to permit
us to find on this record that the bank intentionally discriminated
against her on the basis of age and/or sex." Id. at 1558. For
that reason, the panel concluded that "[r]easonable and fair-minded
persons, in the exercise of impartial judgment, would not conclude
that the bank had discriminated against [the plaintiff] on the
basis of her age or sex." Id.In a concurring opinion, Judge Johnson accurately noted that
the majority had exceeded its proper role by "deciding whether
evidence of pretext supports an inference of intentional
discrimination," a task that requires credibility determinations
21
and the weighing of evidence -- which is the jury's function. Id.
at 1563 (Johnson, J., concurring). As Judge Johnson pointed out,
53 F.3d at 1561-62, the majority's reasoning was not consistent
with the teaching of Hicks, or with our decisions in Howard and
Batey. Judge Johnson agreed with the result in Walker only
because, in his view, the evidence was not sufficient to permit a
factfinder to reject the employer's proffered reasons for its
action. Id. at 1564-65.
As we have recognized before, "no one is perfect, least of all
federal appellate judges, and from our mistakes and oversights
spring inconsistent decisions which we must deal with as best we
can." United States v. Hogan , 986 F.2d 1364, 1369 (11th Cir.
1993). The Walker decision is a mistake. Not only is Walker
inconsistent with the Supreme Court's clear instruction in Hicks,
but it is also inconsistent with the holdings of our Hairston,
Batey, Howard, and Cooper-Houston decisions. Where there are
inconsistent panel decisions, "the earliest panel opinion resolving
the issue in question binds this circuit until the court resolves
the issue en banc." United States v. Dailey, 24 F.3d 1323, 1327
(11th Cir. 1994) (quoting Clark v. Housing Auth. of Alma, 971 F.2d
723, 726 n.4 (11th Cir. 1992)). Our next decision on the issue at
hand is consistent with that principle, because it followed the law
established in the earlier decisions instead of the Walker
decision.
In Richardson v. Leeds Police Department , 71 F.3d 801 (11th
Cir. 1995), we reversed the district court's entry of judgment as
22
a matter of law in a racial discrimination case, after the close of
all the evidence, because the evidence was sufficient to permit a
jury to disbelieve the employer's proffered reasons for its adverse
employment decision. In reviewing the law applicable to these
cases, we cited Hicks and explained:
If the defendant meets this burden [of proffering a
nondiscriminatory reason for its decision], the plaintiff
must then have the opportunity to persuade the trier of
fact, through the presentation of his own case and by
cross-examining the defendant's witnesses, that the
reason proffered was not the real basis for the decision,
but a pretext for discrimination.
Richardson, 71 F.3d at 806 (emphasis added). Of course, persuading
the trier of fact "that the proffered reason was not the real basis
for the decision" is pointless unless that trier of fact is then
permitted to make the inference, which Hicks permits, that the
disbelieved reason is "but a pretext for discrimination."
Therefore, the fact that "a reasonable jury could ... have
concluded that [the employer's proffered explanation] was not the
true reason he was not rehired," precluded entry of judgment as a
matter of law in Richardson, 71 F.3d at 807. That holding, of
course, is inconsistent with Walker, but is consistent with the
binding precedents of Hicks, Hairston, Batey, Howard, and Cooper-
Houston.5
5
Trotter v. Board of Trustees, 91 F.3d 1449 (11th Cir. 1996),
is not inconsistent with our post-Hicks line of precedents properly
applying the Hicks standard. In Trotter, the district court
directed a verdict for the defendant at the close of all the
evidence. We affirmed, because the defendant had proffered
legitimate, nondiscriminatory reasons for its actions, and at the
close of all the evidence, those reasons "remain[ed] unrebutted."
Id. at 1457. In other words, the plaintiffs failed to produce
evidence sufficient to allow a reasonable factfinder to disbelieve
23
To summarize, with the exception of Walker, which is an
anomaly, this circuit's post-Hicks decisions uniformly hold that
once a plaintiff has established a prima facie case and has put on
sufficient evidence to allow a factfinder to disbelieve an
employer's proffered explanation for its actions, that alone is
enough to preclude entry of judgment as a matter of law.
Nevertheless, that well-established rule of law was recently called
into question in dicta contained in Isenbergh v. Knight-Ridder
Newspaper Sales, Inc., 97 F.3d 436 (11th Cir. 1996).
3. The Isenbergh Dicta
In Isenbergh, a former employee brought an Age Discrimination
in Employment Act lawsuit against his former employer when,
following a merger, the employee was not awarded a new managerial
position. Id. at 438. The district court granted summary judgment
for the employer, and a panel of this Court affirmed. In its
opinion, the Isenbergh panel criticized the interpretation of Hicks
established by our Howard decision and questioned whether it
represents a "correct statement of the law." Isenbergh, 97 F.3d at
443. Noting that the Walker decision is out of line with the
reasoning of Howard, the panel said that "[s]ome confusion exists
in the law of this circuit about whether Hicks always precludes
judgments as a matter of law for employers whenever there is a
plausible basis on which to disbelieve the employer's proffered
reason for the decision in question." Isenbergh, 97 F.3d at 442.
those reasons.
24
The panel concluded its critique of Howard by noting its "fear that
what Howard says about sufficient evidence is a mistake."
Isenbergh, 97 F.3d at 442.6
Although the Isenbergh panel opinion criticized our Howard
decision's application of the Hicks standard, the actual decision
in Isenbergh was in harmony with it. As the panel explained, it
affirmed the district court's grant of summary judgment in favor of
the employer, because its "examination of the record here indicates
that Isenbergh failed in creating an issue of fact about the
disbelievability of the employer's reason for the hiring decision."
Isenbergh, 97 F.3d at 443-44. Therefore, the Isenbergh holding, as
distinguished from its dicta, is consistent with Hicks, and with
our post-Hicks precedents properly applying the Hicks standard.
See, e.g., New Port Largo, Inc. v. Monroe County , 985 F.2d 1488,
1500 (11th Cir.) (Edmondson, J., concurring) (emphasizing that "for
law-of-the-circuit purposes, a study of [case law] ought to focus
far more on the judicial decision than on the judicial opinion"),
cert. denied, 510 U.S. 964, 114 S. Ct. 439 (1993). Nevertheless,
the ideas and critiques advanced by Isenbergh's dicta are worthy of
some discussion.7
6
As we have explained in the previous section of this opinion,
Howard followed and was entirely consistent with the holdings of
our earlier decisions in Hairston and Batey. The Isenbergh opinion
mentions Batey, but not Hairston.
7
In Part IV.D, infra, we conclude that in this case the
evidence was insufficient to create a genuine issue of material
fact as to one of Meadowcraft's proffered reasons for not promoting
Combs. We realize, of course, that that holding makes our response
to Isenbergh's dicta itself dicta. Instead of defending our use of
dicta with the cliché about it sometimes being necessary to fight
25
First, we believe that a chronological review of our post-
Hicks case law, see supra Part IV.C.2, ought to dispel any
"confusion [that] exists in the law of this circuit about whether
Hicks always precludes judgments as a matter of law for employers
whenever there is a plausible basis on which to disbelieve the
employer's proffered reason for the decision in question."
Isenbergh, 97 F.3d at 442.
Second, we hope that the Isenbergh opinion will not be read to
call into question the binding authority of our Howard, Hairston,
8
and Batey precedents. While recognizing the "ostensible conflict"
fire with fire, we will rely on our recent acknowledgment that
"[d]icta can sometimes be useful when it contains a persuasive
analysis." McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077
(11th Cir. 1996). We leave it to the reader to determine whether
that condition is met in this instance.
The concurring opinion in this case states that “[t]he legal
principles that control this dispute are familiar and do not
require extended explication.” It then goes on to list as one of
these “familiar” principles the proposition that under the
McDonnell Douglas framework, the plaintiff may shoulder the burden
of convincing the factfinder that a discriminatory reason motivated
the employment action “either directly by persuading the factfinder
that a discriminatory reason motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of
credence.” That principle was not so familiar to the Isenbergh
panel, which went to some length to state its views to the
contrary.
We make no apologies for attempting to clarify this area of
the law, or at least to illuminate the difference of opinion which
exists among some members of this Court concerning it. Unless and
until the issue is presented in a dispositive fashion by the facts
of some future case, which will provide an opportunity for the en
banc court to settle the matter, that is all we can do.
8
In a footnote, the Isenbergh opinion refers to "the
possibility" that the " ostensible conflict" between Walker and
Howard might be reconciled on the grounds that Howard is a Rule 56
(summary judgment) case, whereas Walker is a Rule 50 (judgment as
a matter of law) case. Isenbergh, 97 F.3d at 443 n.4. We are
26
between Howard and Walker, the Isenbergh opinion states that "[w]e
suspect ... that [Walker v.] NationsBank, not Howard, is the more
correct statement of the law." Isenbergh, 97 F.3d at 443; see also
id. at 444 ("even if Howard is and ought to be the law"). Of
course, once a panel of this Court has decided the issue, questions
about whether a different view of the matter might be "more
correct" are rendered academic insofar as subsequent panels are
concerned. Stated somewhat differently, unless and until an issue
is addressed by the en banc Court, the Supreme Court, or Congress,
the first panel decision on it is, by definition, "more correct"
than any subsequent panel decisions. That is what our prior
precedent rule, upon which much of the rule of law in this circuit
depends, is all about.
Because the Walker decision was preceded by a number of
earlier Eleventh Circuit decisions holding that a jury question is
unpersuaded by that suggested distinction. Rule 56 and Rule 50 are
both concerned with judgment as a matter of law -- either before
the trial begins or after. Compare Fed. R. Civ. P. 56 with Fed. R.
Civ. P. 50. As the Supreme Court has instructed us, "the inquiry
under each is the same: whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct.
2505, 2512 (1986). Isenbergh's suggested reconciliation of Walker
and Howard would set up differing substantive liability standards
for judgment as a matter of law in discrimination cases, depending
entirely upon the timing of the related motion. We know of no
authority for making such a change in the law, and we believe
Anderson squarely prohibits it.
The reality of the situation is that Walker is irreconcilably
out of step with this circuit's precedents. See Mayfield v.
Patterson Pump Co., 101 F.3d 1371, 1376 n.4 (11th Cir. 1996)
(acknowledging that "an apparent conflict exists within this
circuit on the issue").
27
created when a prima facie case is coupled with evidence sufficient
to permit a reasonable factfinder to disbelieve an employer's
proffered reasons for the challenged action, those earlier
decisions remain binding on this Court, and all panels of it.
They, and not Walker or Isenbergh, state what has been and will be
the law of this circuit unless and until the en banc Court, the
Supreme Court, or Congress changes it. See, e.g., United States v.
Dailey, 24 F.3d 1323, 1327 (11th Cir. 1994); Clark v. Housing Auth.
of Alma, 971 F.2d 723, 726 n.4 (11th Cir. 1992).
Finally, the Isenbergh opinion sets up a reductio ad absurdum
that bears further examination:
Assume the following situation by way of example.
A defendant sues, alleging he was terminated based on his
membership in a protected class. The employer responds
with a neutral reason for the hiring decision: the
employee was terminated because he was late nine times.
After a bench trial, the judge finds, among other facts,
that the defendant was late not nine, but seven times.
Relying on Hicks, however, the judge determines that this
case is one where the employer's reason should be
disbelieved, but where application of discrimination law
to the instant facts (including disbelievability)
nonetheless supports a judgment for the employer. This
result is the one specifically authorized by Hicks. See
509 U.S. at 508-11, 113 S. Ct. at 2748-49.
The issue in Howard and [Walker v. ]NationsBank and
the issue alluded to in the original panel opinion here
is essentially this one: might there be a case where the
application of law to facts can proceed in a similar way,
but at the summary judgment stage or for the purposes of
judgment as a matter of law? To continue with the prior
example, suppose the employer offers the nine-
latenesses explanation, and the record in a jury trial
shows that no reasonable jury could find but that the
plaintiff was late only seven times. Assuming the
employee made out a bare prima facie case and nothing
else points to discrimination, may the employer -- at
least, sometimes -- be entitled to a judgment as a
matter of law even though the jury could (indeed, must)
28
disbelieve the employer's stated reason? The Howard
panel, reading Hicks, seems to say "no."
We suspect, however, that the answer is "yes" ....
Isenbergh, 97 F.3d at 442-43.
The real answer is that in the Isenbergh opinion's
hypothetical, the nondiscriminatory reason proffered by the
employer for its actions is excessive lateness, not that the
employee was late exactly a specific number of times, no more and
no less. In the hypothetical, there is a conflict only between the
precise number of times the employer said the employee was late,
and the actual number of times the employee was late. But there is
no conflict about the employee's being late an excessive number of
times. The issue upon which judgment as a matter of law turns is
whether the employer's proffered nondiscriminatory reason for its
action, excessive lateness, may reasonably be disbelieved, not
whether the employee was late nine times as opposed to seven.9
9
By treating the employer's proffered nondiscriminatory reason
as a specific number of "latenesses," instead of excessive
lateness, the hypothetical also makes the same sort of analytical
error that the Supreme Court identified and addressed in Hicks
itself:
These statements imply that the employer's "proffered
explanation," his "stated reasons," his "articulated
reasons," somehow exist apart from the record -- in some
pleading, or perhaps in some formal, nontestimonial
statement made on behalf of the defendant to the
factfinder. ("Your honor, pursuant to McDonnell Douglas
the defendant hereby formally asserts, as its reason for
the dismissal at issue here, incompetence of the
employee.") Of course it does not work like that. The
reasons the defendant sets forth are set forth "through
the introduction of admissible evidence." Burdine, 450
U.S., at 255, 101 S. Ct., at 1094.
Hicks, 509 U.S. at 522-23, 113 S. Ct. at 2755 (emphasis omitted).
29
In the hypothetical set up in the Isenbergh opinion, there is
no evidence to discredit the employer's explanation that the
defendant was fired for excessive lateness; the defendant's reason
for its action remains unrebutted. So, the employer would be
entitled to judgment as a matter of law under Hicks, 509 U.S. at
515-18, 113 S. Ct. at 2751-53 (discussing plaintiff's burden of
discrediting the defendant's explanations), and under all of our
prior decisions, including Hairston, Batey, and Howard.
4. The Post-Hicks Case Law in Other Circuits
Eight other circuits have considered the issue and interpreted
Hicks to mean exactly what we have interpreted it to mean -- that
evidence sufficient to discredit a defendant's proffered
nondiscriminatory reasons for its actions, taken together with the
plaintiff's prima facie case, is sufficient to support (but not
require) a finding of discrimination. That is the law not only in
this circuit, but also in the Second, Third, Fourth, Sixth,
Seventh, Eighth, Ninth, and District of Columbia Circuits. See,
e.g., EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)
("A finding of pretextuality allows a juror to reject a defendant's
proffered reasons for a challenged employment action and thus
permits the ultimate inference of discrimination."); Sheridan v.
Because the employer is required to proffer its explanation
not by a mere assertion, but by the introduction of admissible
evidence, the hypothetical's assumption that the employer somehow
"offers the nine-latenesses explanation" when the overwhelming
weight of the evidence is that the employee was late only seven
times, is unrealistic. As the Supreme Court said in Hicks, "[I]t
does not work like that." Id. at 523, 113 S. Ct. at 2755.
30
E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1066-67 (3d Cir. 1996)
(en banc) ("[T]he elements of the prima facie case and disbelief of
the defendant's proffered reasons are the threshold findings,
beyond which the jury is permitted, but not required, to draw an
inference leading it to conclude that there was intentional
discrimination.");10 Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316
(4th Cir. 1993) (considering two questions at summary judgment:
(1) the prima facie case and (2) "whether [the plaintiff] has shown
that there is a genuine dispute of material fact about [the
defendant's] proffered explanation for the discharge"); Manzer v.
Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994)
("[T]he only effect of the employer's nondiscriminatory explanation
is to convert the inference of discrimination based upon the
plaintiff's prima facie case from a mandatory one which the jury
must draw, to a permissive one the jury may draw, provided that the
jury finds the employer's explanation 'unworthy' of belief.")
(emphasis in original); Perdomo v. Browner, 67 F.3d 140, 146 (7th
Cir. 1995) ("The district court found Perdomo's [direct] evidence
of racial discrimination unpersuasive, but ... such evidence is not
required: the trier of fact is permitted to infer discrimination
from a finding that the employer's proffered reason was
spurious."); Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104,
1110 (8th Cir.) ("The elements of the plaintiff's prima facie case
10
The Third Circuit's en banc opinion in Sheridan is a
particularly illuminating and thorough study of the issue,
especially its discussion of the justification for the
interpretation of Hicks that has been adopted by a majority of the
circuits. See 100 F.3d at 1068-72.
31
are thus present and the evidence is sufficient to allow a
reasonable jury to reject the defendant's non-discriminatory
explanations. The 'ultimate question' of discrimination must
therefore be left to the trier of fact to decide."), cert. denied,
115 S. Ct. 355 (1994); Washington v. Garrett, 10 F.3d 1421, 1433
(9th Cir. 1993) ("If a plaintiff succeeds in raising a genuine
factual issue regarding the authenticity of the employer's stated
motive, summary judgment is inappropriate, because it is for the
trier of fact to decide which story is to be believed."); Barbour
v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995) ("According to
Hicks, a plaintiff need only establish a prima facie case and
introduce evidence sufficient to discredit the defendant's
proffered nondiscriminatory reasons; at that point, the factfinder,
if so persuaded, may infer discrimination.").
Of course, the holdings of other federal courts of appeals on
the issue do not determine the law of this circuit. However, in
considering whether the rule established in our precedents "ought
to be the law," it is of no small moment that eight of the ten
other circuits that have considered the question are in agreement
with our interpretation of Hicks. Thus far, only the First and
Fifth Circuits have issued opinions expressing a contrary view, and
in neither opinion was that expression actually a holding.
In Woods v. Friction Materials, Inc., 30 F.3d 255 (1st Cir.
1994), the First Circuit stated that proof of pretext will not
always shield a plaintiff from summary judgment, id. at 260 n.3,
but held only that the defendant in that case was entitled to
32
summary judgment because the plaintiff had presented "no evidence
... to rebut [the defendant's] assertion that those hired were more
qualified," id. at 262. Of course, that holding -- as
distinguished from the dicta -- is entirely consistent with the law
of our circuit and the eight other circuits we have cited.
In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996)
(en banc), the Fifth Circuit affirmed judgment in favor of an
employee in an age discrimination case, holding that the evidence
was sufficient to allow a rational jury to find that age
discrimination was the true reason the employer discharged the
employee. That holding itself is no problem, but the Rhodes
opinion also contains dicta regarding the Hicks rule that is
arguably inconsistent with the law of this circuit and eight
others. Although the Rhodes opinion states that under Hicks,
"evidence of pretext will permit a trier of fact to infer that the
discrimination was intentional," id. at 993, it also states that
"[i]t is unclear ... whether the [Supreme] Court intended that in
all such cases in which an inference of discrimination is permitted
a verdict of discrimination is necessarily supported by sufficient
evidence," id. Additionally, the opinion states, "[w]e are
convinced that ordinarily such verdicts would be supported by
sufficient evidence, but not always." Id.The fact remains that the contrary dicta in the First and
Fifth Circuit decisions are just that: dicta. We have not found
any holding of any circuit inconsistent with the holding of our
33
Hairston, Batey, Howard, Cooper-Houston line of decisions, and at
least eight other circuits have reached the same holding.
5. The Hicks Standard is not a "Dramatic and Hurtful-
to-Employers Change in the Law”
We close out our discussion of the Isenbergh dicta by
answering its charge that the Howard line of decisions represents
a "dramatic and hurtful-to-employers change in the law" that the
Supreme Court did not intend or command in the Hicks decision, see
Isenbergh, 97 F.3d at 443. Not only does Hicks command the rule
recognized in our Howard line of decisions, but that rule is a
rational, common-sense consequence of the unique evidentiary
framework that has been in place for over twenty years -- ever
since the Supreme Court decided McDonnell Douglas.
Under the McDonnell Douglas framework, if a plaintiff
establishes a prima facie case, and the defendant employer proffers
no nondiscriminatory reasons for the action, it is settled that the
plaintiff wins judgment as a matter of law. Burdine, 450 U.S. at
253, 101 S. Ct. at 1093-94. Hopefully, no one would suggest that
in such a case the defendant might be entitled to a judgment as a
matter of law. Yet, those who argue against the Howard line of
decisions are advocating a position that is not much more logically
defensible than that. Given the establishment of a prima facie
case in each, the case in which an employer puts forward nothing
but false reasons is too analytically close to the case in which
the employer puts forward no reasons for the law to permit judgment
as a matter of law to be entered for opposite sides in the two
34
cases. Stated somewhat differently, why should the law reward so
handsomely mendacity in legal proceedings?
The upshot of Hicks and the Howard line of decisions is that
a defendant cannot win judgment as a matter of law merely by
proffering nothing but false nondiscriminatory reasons for its
actions. The justification for that rule is closely analogous to
the justification for the mandatory presumption of discrimination
that initially accompanies a plaintiff's prima facie case. As
then-Justice (now Chief Justice) Rehnquist pointed out long before
the Hicks decision, we require a defendant, on pain of losing the
case, to come forward with explanations for its actions once a
plaintiff has made out a prima facie case of discrimination,
"because we presume these acts, if otherwise unexplained, are more
likely than not based on the consideration of impermissible
factors." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.
Ct. 2943, 2949-50 (1978). Justice Rehnquist further explained:
[W]e are willing to presume this largely because we know
from our experience that more often than not people do
not act in a totally arbitrary manner, without any
underlying reasons, especially in a business setting.
Thus, when all legitimate reasons for rejecting an
applicant have been eliminated as possible reasons for
the employer's actions, it is more likely than not the
employer, who we generally assume acts only with some
reason, based his decision on an impermissible
consideration such as race.
Id.As the Third Circuit, sitting en banc, recently observed, "The
distinct method of proof in employment discrimination cases,
relying on presumptions and shifting burdens of articulation and
production, arose out of the Supreme Court's recognition that
35
direct evidence of an employer's motivation will often be
unavailable or difficult to acquire." Sheridan v. E.I. DuPont De
Nemours & Co. , 100 F.3d 1061, 1071 (3d Cir. 1996) (en banc).
Frequently, acts of discrimination may be hidden or subtle; an
employer who intentionally discriminates is unlikely to leave a
written record of his illegal motive, and may not tell anyone about
it. "There will seldom be 'eyewitness' testimony as to the
employer's mental processes." United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 1482
(1983). Because of those realities, plaintiffs are often obliged
to build their cases entirely around circumstantial evidence. The
unique proof problems that accompany discrimination cases are the
genesis of the unique solutions that the Supreme Court has devised
for those cases in McDonnell Douglas and its progeny. See, e.g.,
Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S. Ct. 1775,
1801-02 (1989) (O'Connor, J., concurring) ("[T]he entire purpose of
the McDonnell Douglas prima facie case is to compensate for the
fact that direct evidence of intentional discrimination is hard to
come by.").
A defendant who puts forward only reasons that are subject to
reasonable disbelief in light of the evidence faces having its true
motive determined by a jury. But we fail to see how that result is
particularly "hurtful-to-employers," as Isenbergh suggests, 97 F.3d
at 443. The Third Circuit recently explained:
We routinely expect that a party give honest
testimony in a court of law; there is no reason to expect
less of an employer charged with unlawful discrimination.
If the employer fails to come forth with true and
36
credible explanation and instead keeps a hidden agenda,
it does so at its own peril. Under those circumstances,
there is no policy to be served by refusing to permit the
jury to infer that the real motivation is the one that
the plaintiff has charged.
Sheridan, 100 F.3d at 1069.
Of course, the law is that the jury is not required to make
the inference of discrimination that Hicks permits upon rejection
of the employer's proffered nondiscriminatory reasons. "That the
employer's proffered reason is unpersuasive, or even obviously
contrived, does not necessarily establish that the plaintiff's
proffered reason of race is correct. That remains a question for
the factfinder to answer ...." Hicks, 509 U.S. at 524, 113 S. Ct.
at 2756. In answering that question, the jury must perform its
traditional duties of assessing the credibility of witnesses
through observation of trial testimony and of weighing the evidence
-- tasks peculiarly within the province of the jury. E.g., Castle
v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir. 1988)
("Assessing the weight of evidence and credibility of witnesses is
reserved for the trier of fact."). In performing those traditional
duties, the jury must measure the strength of the permissible
inference of discrimination that can be drawn from the plaintiff's
prima facie case along with the evidence that discredits the
employer's proffered explanations for its decision. Even if the
jury concludes that all the employer's proffered explanations are
unworthy of belief, it may still remain unpersuaded that
discrimination was the real reason for the employer's decision.
37
That decision is entrusted to the jury's discretion, but to
exercise that discretion, the jury has to get the case.
When deciding a motion by the defendant for judgment as a
matter of law in a discrimination case in which the defendant has
proffered nondiscriminatory reasons for its actions, the district
court's task is a highly focused one. The district court must, in
view of all the evidence, determine whether the plaintiff has cast
sufficient doubt on the defendant's proffered nondiscriminatory
reasons to permit a reasonable factfinder to conclude that the
employer's proffered "legitimate reasons were not what actually
motivated its conduct," Cooper-Houston v. Southern Ry. Co., 37 F.3d
603, 605 (11th Cir. 1994) (citation omitted). The district court
must evaluate whether the plaintiff has demonstrated "such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of
credence." Sheridan, 100 F.3d at 1072 (citation and internal
quotation marks omitted); see also Walker, 53 F.3d at 1564(Johnson, J., concurring) (discussing methods of proving pretext).
However, once the district court determines that a reasonable jury
could conclude that the employer's proffered reasons were not the
real reason for its decision, the court may not preempt the jury's
role of determining whether to draw an inference of intentional
discrimination from the plaintiff's prima facie case taken together
with rejection of the employer's explanations for its action. At
that point, judgment as a matter of law is unavailable.
38
D. Application of the Legal Standard to the
Evidence in this Case
Having reviewed the legal principles that govern this case, we
now proceed to apply those principles to the evidence adduced at
trial. In doing so, we consider the entire record in the light
most favorable to Combs, for the limited purpose of ascertaining
whether there was sufficient evidence for Combs to withstand
Meadowcraft's motions for judgment as a matter of law. Our task,
like that of the district court, is a highly focused one. We must,
in view of all the evidence, determine whether the plaintiff has
cast sufficient doubt on the defendant's proffered
nondiscriminatory reasons to permit a reasonable factfinder to
conclude that the employer's proffered "legitimate reasons were not
what actually motivated its conduct," Cooper-Houston v. Southern
Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994).
As previously noted, Meadowcraft proffered evidence in support
of three legitimate, nondiscriminatory reasons for its decision to
promote Walker, instead of Combs, to the position of welding
supervisor. Those reasons were: (1) Walker's superior welding
experience; (2) the recommendations of supervisors Lane and
Anderson; and (3) Walker's superior supervisory experience. By
meeting its burden of producing legitimate reasons for its
decision, Meadowcraft successfully eliminated the presumption of
discrimination that initially accompanied Combs' prima facie case.11
11
To establish a prima facie case of discriminatory failure to
promote, a plaintiff must prove: (1) that he is a member of a
protected class; (2) that he was qualified for and applied for the
promotion; (3) that he was rejected; and (4) that other equally or
39
Provided that the record evidence would permit a reasonable
factfinder to reject each of Meadowcraft's proffered explanations
for its decision, the case properly was submitted to the jury for
a decision on the ultimate question of intentional discrimination.
less qualified employees who were not members of the protected
class were promoted. Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.
1988), cert. denied, 490 U.S. 1006, 1090 S. Ct. 1641 (1989).
Although Meadowcraft contends that we should revisit whether Combs
successfully established a prima facie case of discrimination, the
Supreme Court has instructed otherwise:
[W]hen the defendant fails to persuade the district court
to dismiss the action for lack of a prima facie case, and
responds to the plaintiff's proof by offering evidence of
the reason for the plaintiff's rejection, the factfinder
must then decide whether the rejection was discriminatory
within the meaning of Title VII.
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 714-15, 103 S. Ct. 1478, 1481 (1983) (footnote omitted).
"When the trier of fact has before it all the evidence needed to
decide the ultimate issue of whether the defendant intentionally
discriminated against the plaintiff, the question of whether the
plaintiff properly made out a prima facie case 'is no longer
relevant.'" Richardson v. Leeds Police Dep't, 71 F.3d 801, 806
(11th Cir. 1995) (quoting Aikens, 460 U.S. at 715, 103 S. Ct. at
1482; see also Wall v. Trust Co., 946 F.2d 805, 809-10 (11th Cir.
1991) (same).
Because Meadowcraft failed to persuade the district court to
dismiss Combs' lawsuit for lack of a prima facie case, and
responded to Combs' proof by offering evidence to explain why Combs
was rejected in favor of Walker, the factfinder was then required
to "decide whether the rejection was discriminatory within the
meaning of Title VII." Aikens, 460 U.S. at 715, 103 S. Ct. at
1481. Of course, the factfinder could conclude that the decision
was discriminatory only if it permissibly could disbelieve
Meadowcraft's proffered nondiscriminatory reasons for its decision.
Therefore, on appeal -- as on Meadowcraft's motion for judgment as
a matter of law -- the question of whether Combs "properly made out
a prima facie case 'is no longer relevant,'" Richardson, 71 F.3d
at 806 (11th Cir. 1995) (quoting Aikens, 460 U.S. at 715, 103 S.
Ct. at 1482. While we consider the evidence submitted by Combs in
connection with his prima facie case in evaluating whether a
reasonable jury could disbelieve Meadowcraft's proffered
nondiscriminatory reasons for its actions, we do not revisit the
existence of the prima facie case itself.
40
We now consider the evidence related to each of the three proffered
nondiscriminatory reasons for Meadowcraft's decision to promote
Walker instead of Combs.
1. Welding Experience
The parties agree that Walker had welding experience and that
Combs did not. Combs concedes that "some difference in the two
existed" with respect to welding experience, which we take to mean
that Walker was more qualified as a welder than Combs.
Nonetheless, Combs contends that the jury reasonably could have
concluded that Walker's welding experience did not actually
motivate Meadowcraft's promotional decision, because Walker was
transferred to the packing department -- where welding experience
is irrelevant -- almost immediately after his promotion.
Viewing the record evidence in the light most favorable to
Combs, we agree that a reasonable jury could have concluded that
Meadowcraft's promotional decision was not actually motivated by
Walker's concededly superior welding experience. At trial, John
Hart, supervisor of the Wadley plant, testified: "Fred was packing
supervisor when I hired him. He wasn't in the weld area, he was a
packing supervisor." Although Meadowcraft contends that Walker's
stint in the packing department lasted only a short time, that
contention is undermined by the record. George Anderson, one of
the welding department supervisors, testified about the duration of
Walker's packing assignment as follows: "Fred made a good
supervisor. When he was first hired, I think he spent a couple of
weeks in welding, then he was moved to packing for a year or so.
41
Now he's back over there with the men in the welding, and he's
doing an outstanding job."
When viewed in the light most favorable to Combs, the
foregoing evidence would permit a reasonable juror to conclude that
Walker was hired to work as a packing supervisor and that he spent
at least a year in that position before being transferred to the
welding department. Because welding experience is not relevant to
supervisory work in the packing department, a reasonable juror
would be permitted to conclude that Walker's superior welding
experience was not a factor that actually motivated Meadowcraft's
decision to promote Walker instead of Combs.
2. Supervisory Recommendations
Meadowcraft contends that its decision to promote Walker
instead of Combs was based on the recommendations of welding
department supervisors George Anderson and Edward Lane, both of
whom are black. According to Meadowcraft, those supervisory
recommendations favored Walker, because Walker was endorsed by both
supervisors, whereas Combs was endorsed only by Lane. That view of
the circumstances is supported by the testimony of Plant Supervisor
Hart. At trial, Hart testified: "George and Edward both
recommended Fred Walker for the job. They were more familiar with
Fred Walker than I was. I had never spoken to Fred Walker until I
interviewed him." Hart further testified that "[a]fter George and
Edward came to me and recommended him, I did pull his resume."
Additionally, Hart testified that neither Anderson nor Lane ever
recommended that Combs be promoted to supervisor.
42
Meadowcraft's view of the evidence is also supported by
Anderson's testimony. At trial, the following exchange took place
on direct examination of Anderson:
Q. Did you have anything to do with Mr. Walker's
promotion to supervisor?
A. Well, one day Fred come up to the office and talked
with me and Mr. Lane about do they think we have
any chance of progressing himself in the plant. He
told him to send out a resume. He did, and I sort
of recommended him to John [Hart] that, you know, I
have nothing to do with the hiring, but I did
recommend Fred to be a supervisor.
Q. Why did you do that?
A. Well, I worked with Fred down there on the floor.
He came in and he got into welding, and I already
knew that he had used to be a principal, and I knew
he worked with people. At that time we was needing
supervisors. We was going to start up a second
shift and we'd have to get some supervisors, and I
hadn't thought about him until he came and talked
with us that day. I figured he'd be a good
candidate.
Q. And you communicated that to Mr. Hart?
A. Yes.
Q. Did you ever recommend Darrell Combs to be
supervisor?
A. No, I didn't.
Although Hart's and Anderson's testimony supports
Meadowcraft's proffered nondiscriminatory explanation for promoting
Walker instead of Combs, Edward Lane's testimony paints a different
picture of the supervisory assessments of Walker and Combs.
According to Lane's testimony on direct examination, he recommended
Combs for the supervisor position, and Anderson agreed with Lane's
evaluation of Combs' qualifications for the position:
43
Q. Now, were you there when Mr. Combs sought a
position in the office?
A. Yes, ma'am, I was.
Q. And tell the ladies and gentlemen of the jury what
you know about that.
A. At the time it was for other positions, supervision
positions were open. The man that I was working
for by the name of Mr. John Hart, knew of such a
position, and we made a recommendation for him to
be a supervisor.
Q. You made a recommendation for who to be a
supervisor?
A. This gentleman in the courtroom by the name of
Darrell Combs.
Q. To whom did you make that recommendation?
A. To Mr. John Hart.
Q. Now, at the time you made that recommendation, was
there any other individuals discussed?
A. Yes, ma'am, there was. A gentleman by the name of
Mr. Fred Walker.
Q. Now, when you made this recommendation about Mr.
Combs, it was being of supervisory material, is
that correct?
A. Yes, ma'am, I did.
Q. Who else was -- Was it at a meeting you made that
recommendation?
A. Yes, ma'am.
Q. Who else was at that meeting?
A. Mr. George Anderson.
Q. Did Mr. Anderson go along with your assessment that
Mr. Combs was qualified to be a supervisor?
A. Yes, he did.
Q. Did he express that to Mr. Hart?
44
A. Yes, ma'am, he did.
In addition to testifying that both he and Anderson supported
Combs for the supervisory position, Lane repeatedly denied
recommending Walker for the job:
Q. Did you recommend Fred Walker be promoted to
supervisor, and did you make that recommendation to
John Hart?
A. No, sir, I made the recommendation for Darrell
Combs.
....
Q. All I want you to tell me, I don't mean to cut you
off again, but I want you to tell me what you said.
A. I'm telling you direct as to what I directed to the
gentleman right there, Darrell Combs. That's the
recommendation I made to be supervisor.
Q. I got that. You recommended Darrell Combs.
A. Yes, sir.
Q. Did you, or did you not, recommend Fred Walker?
A. No, sir, I did not.
Q. You did not?
A. No, sir.
When confronted with his deposition testimony, however, Lane
admitted that he told Hart that Walker would make a good
supervisor, but indicated that he was pressured to do so:
Q. So you did tell John Hart that Fred Walker would
make a good supervisor.
A. Yes, sir, I had to.
Q. All right. Tell us about that.
A. The reason I had to, sir, was we was in a meeting.
... And John was the manager. If I would have said
45
yes or no, still John was going to pick who he
wanted.
Q. I'm not trying to get at what Mr. Hart was going to
do with your recommendation, I'm trying to get at
what your recommendation was.
A. Yes, sir. We all agreed.
To summarize, the evidence is in conflict about the
communications that Anderson and Lane made to Hart about the
relative merits of Walker and Combs for the supervisory position.
It is undisputed that Anderson recommended Walker, but there is
conflicting testimony about whether he also endorsed Combs.
Similarly, Lane's testimony clearly indicates that he recommended
Combs, but there is conflicting testimony about whether he also
endorsed Walker, or merely begrudgingly agreed at a meeting with
Hart and Anderson that Walker would be a good supervisor. Viewing
the evidence in the light most favorable to Combs, a reasonable
jury could conclude that the supervisory recommendations of
Anderson and Lane did not clearly point to Walker or Combs as the
preferable candidate and that, therefore, those supervisory
recommendations did not actually motivate Meadowcraft's decision to
promote Walker instead of Combs.
3. Supervisory Experience
Meadowcraft's third proffered nondiscriminatory reason for
promoting Walker instead of Combs is that Walker had better
experience as a supervisor, both in quality and quantity. On that
point, it is undisputed that prior to joining the workforce at
Meadowcraft, Walker worked for over twenty years as a school
46
administrator and had supervised others throughout most of his
career. Walker's testimony about his supervisory experience, which
is entirely undisputed, is as follows:
Q. [Y]ou say, you became principal with Woodland High
School in 1974?
A. About January of 1974, immediately after New
Year's.
Q. And did you supervise people?
A. Yes, sir.
Q. How many people would you say you supervised?
A. Approximately forty-seven or forty-eight teachers,
thirty-five to thirty-six bus drivers, thirteen or
fourteen lunchroom personnel, and custodian type
workers. Probably around a hundred or more people.
....
Q. All right. How long were you principal at
Woodland?
A. Seven years.
Q. And then what did you do?
A. I received a promotion to the superintendent's
office at the county courthouse, and I joined the
superintendent's staff as supervisor of
instruction.
....
Q. How many schools did you all have jurisdiction
over?
A. We had four high schools, two middle schools and
one junior high school at that time. Also a share
of the vocational trade school.
....
Q. All right. How long were you supervisor of
instruction?
A. Six years.
47
....
Q. So after the superintendent's office, you went to
Rock Mill?
A. Yes, sir.
Q. And Rock Mill is a -- what type of school is that?
A. It's a K through 8 junior high school.
Q. All right. How many students were there?
A. Approximately at that time 350 students.
Q. And you had responsibility for those students?
A. Yes, sir.
Q. How many teachers were there?
A. At that time probably sixteen or seventeen on
staff.
Q. Did you supervise any other workers?
A. My custodial workers, my lunchroom workers and my
bus drivers.
Q. Okay. And you were principal of Rock Mill
beginning in '86 until what year?
A. 1991.
By contrast, Combs' testimony at trial established that his
own supervisory experience was extremely limited:
Q. Now, you had never really had any power to
discipline, or counsel, or fire anybody while you
were out there [in the scanning department], had
you?
A. On that job?
Q. Yes, sir.
A. No, sir.
Q. While you were at the company at all?
A. No, sir.
48
Q. And you never really supervised anyone, other than
showing the people how to use the scanning guns for
over those two or three weeks?
A. Right.
Q. Let's look at your work experience, if we can.
Prior to the company, okay, you had been a grocery
store bagger?
A. Yes, sir.
Q. You had been a resident manager at an apt
[apartment] complex, right?
A. Yes, sir.
Q. Had you supervised anybody there?
A. Supervise? Well, I used to have little teenagers
working for me when I was doing some of my
maintenance duties, but as far as -- like as far as
like company people, no.
....
Q. So at the point of 1992 when you're working for Mr.
Hart on this assignment he had for you, you hadn't
really ever supervised anybody except those
teenagers you told me about, is that right?
A. That's right.
Thus, the evidence was undisputed that Walker had substantial
supervisory experience, while Combs had virtually none.
Nonetheless, Combs contends that he put on sufficient evidence to
permit a reasonable jury to disbelieve that Meadowcraft's decision
to promote Walker was motivated by Walker's supervisory experience.
Combs points to the fact that, prior to joining Meadowcraft, Walker
was forced to resign his position as principal of Rock Mills Junior
High School after acknowledging that he had misused approximately
$5,000 of school funds. Combs' theory seems to be that Walker's
substantial supervisory experience is sufficiently undermined by
49
the circumstances surrounding his resignation as principal that a
reasonable juror could disbelieve Meadowcraft's explanation that it
promoted Walker instead of Combs because Walker had more and better
supervisory experience. We disagree.
Financial impropriety is a serious matter, but there is no
evidence in the record that either Walker or Combs were considered
for a position that involved the custody or management of company
funds. Walker and Combs were contenders for a position that
involved managing people, not money. If Meadowcraft had contended
that it promoted Walker instead of Combs because it believed Walker
would be a more trustworthy financial manager, the evidence of
Walker's misuse of funds clearly would have been sufficient to
permit a reasonable jury to disbelieve Meadowcraft's proffered
explanation. However, Meadowcraft never proffered that as a
reason. Instead, Meadowcraft proffered evidence that the reason it
promoted Walker was that he had years of extensive supervisory
experience that Combs did not.
In relying on Walker's financial improprieties to undermine
Meadowcraft's explanation that it based its promotion decision on
Walker's superior supervisory experience, Combs confuses
disagreement about the wisdom of an employer's reason with
disbelief about the existence of that reason and its application in
the circumstances. Reasonable people may disagree about whether
persons involved in past financial improprieties should be made
supervisors, but such potential disagreement does not, without
more, create a basis to disbelieve an employer's explanation that
50
it in fact based its decision on prior non-financial supervisory
experience. Meadowcraft's decision to promote Walker instead of
Combs may seem to some to be bad business judgment, and to others
to be good business judgment, but federal courts do not sit to
second-guess the business judgment of employers. Stated somewhat
differently, a plaintiff may not establish that an employer's
proffered reason is pretextual merely by questioning the wisdom of
the employer's reason, at least not where, as here, the reason is
one that might motivate a reasonable employer.
To summarize, Combs failed to produce evidence sufficient to
permit a reasonable factfinder to disbelieve Meadowcraft's
proffered nondiscriminatory explanation that it promoted Walker
instead of Combs because Walker had superior supervisory
experience. Because of that failure, the district court should not
have permitted the case to go to the jury. Meadowcraft was
entitled to judgment as a matter of law.
V. CONCLUSION
A plaintiff in a discrimination case based on circumstantial
evidence can avoid judgment as a matter of law by putting on a
prima facie case and by producing evidence sufficient to discredit
in the mind of a reasonable juror all of the defendant's proffered
nondiscriminatory reasons for its actions. In this case, however,
Combs failed to produce evidence sufficient to permit a reasonable
juror to reject as spurious Meadowcraft's explanation that it
promoted Walker instead of Combs to supervisor because Walker had
superior supervisory experience.
51
Therefore, we REVERSE the entry of judgment in favor of Combs,
and we REMAND the case for entry of judgment in favor of
Meadowcraft.
52